Bias and judging

Fellow Purple Wisconsin blogger Jay Miller raises the "appearance of partiality" in our judiciary, noting the way in which judges disagree on controversial issues such as voter ID. I sympathize with the reaction. It brings to mind an exchange I had with a student a few years ago.

I was teaching Civil Procedure.  We were discussing divisions in the Supreme Court on a somewhat arcane point about pleading when a student lost her religion. "These are some of the smartest lawyers in America," she said, "why can't they agree?"

"Welcome," I said, " to the legal profession."

Mr. Miller is a lawyer - so I do not attribute these attitudes to him - but he begins his post with what my favorite professor from the first year of law school, leftie Duncan Kennedy, called "lay naïveté." "The law is the law," they say.

And mostly it is. But sometimes it's not. There are cases in which the law is what legal academics call "underdetermined" (they say this because it sounds more sophisticated, and it sort of is, than saying "uncertain"). The idea is that established principles do not yield a clear answer. In such cases, judges have discretion and the way in which they exercise that discretion will reflect their pre-existing beliefs about the way in which the world works and how our Constitution, common law and rules of statutory interpretation should approach it.

Once you realize this, it's not hard to see how, say, Judges Rudy Randa and Lynn Adelman, would come to different conclusions. One judge is suspicious of progressive designs that seek to perfect the world. The other is drawn to them. Both will understand when they have no room to maneuver, but, when they think that they do, each will reach different results.

But that recognition can lead us to a different problem - what Professor Kennedy called "lay cynicism" - and to which Mr. Miller's post also alludes. Seeing that judges sometimes decide cases based on their political preferences, the public concludes that they always do. This is not true. The public thinks it to be so because it's attention is normally directed to cases in which these philosophical differences are more or less free to express themselves. This is a small fraction of all cases.

Mr. Miller says that he'd like to read a story about cases in which judges decide cases in a way that is contrary to their political preferences. One commenter to his post thought that Judge Richard Posner's vote against voter ID was an example because Posner is "famously conservative."

Actually, he's not. He may have been once, but Posner is now "famously liberal." I could say more about that. Posner has been, more than anything else, a pragmatist and relativist - someone who doesn't believe in overarching principles. There is value in such approach, but the danger is that it becomes a crass utilitarianism in which there is little difference between one's political predilections and the law. I would suggest that Judge Posner is an example of the way in which the line between law and politics blurs, rather than an exception.

But I would have no problem finding many examples of what Mr. Miller is looking for. In the recent Act 10 cases, Justice Patrick Crooks used his concurrence to express his support for unions. The opinion had little to do with the law and everything to do with Justice Crooks' politics. One might criticize him for using a judicial opinion to express those views, but he did vote to uphold Act 10. He did it because there really was no serious argument for Act 10's unconstitutionality.

I could go on. Wisconsin's liberal justices voted to reject a procedural challenge to the constitutional amendment banning same sex marriage. Its conservative justices voted to reject a challenge to the state's domestic partnership bill. Despite what you may hear, conservative justices vote to uphold the claims of criminal defendants and liberal justices vote to reject them.

On the United States Supreme Court, the Obama administration has lost an extraordinary number of unanimous decisions. The liberals - and, make no mistake about it, Justices Ginsburg, Breyer, Sotomajor and Kagan are well to the left of the legal center - have voted against it. Conservatives voted to dismiss review of the Ninth Circuit's decision striking down California's constitutional amendment limiting marriage to one man and one woman because they thought the petitioners lacked standing.

One commenter to Mr. Miller's post cites Judge Richard Posner, who he describes as "famously conservative" but who voted to overturn voter ID, etc. Judge Posner is not "famously conservative." He may have been once, but he has moved sharply to the left. Judge Posner was always a tentative - an somewhat unusual - "conservative." His judicial philosophy is largely a sort of utilitarianism that is highly susceptible to his individual assessment of the merits of the question before him. Thus when his political views change, the outcomes change.

In this, his underlying approach is quite compatible with Professor Kennedy, one of the giants of Critical Legal Studies and my left-wing (and quite good) torts teacher.

Cross posted at Purple Wisconsin